By Albert Samaha
By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
Refusing to take the president's word for it, O'Connor said that "the circumstances surrounding Hamdi's seizure cannot in any way be characterized as 'undisputed.' " The government claims the detainee was caught fighting for the Taliban in Afghanistan and was moved by allies into U.S. custody. Hamdi's father contends that the then 20-year-old had traveled abroad alone for the first time, on a humanitarian mission, and likely fell into the clutches of local bounty hunters.
Bush's lawyer gave the Court this answer to the factual ambiguity, at oral argument in April: "It may not seem what you think of as traditional due process . . . but the interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake." It is impossible to know how much subsequent revelations in the U.S. military torture scandal influenced the justices, but the majority found the administration's version of a fair hearing utterly lacking. "An interrogation by one's captor . . . hardly constitutes a constitutionally adequate factfinding," wrote O'Connor.
According to Tribe, "When they hear an argument in the morning where the executive branch says, 'Trust me,' and then they hear on the evening news to the contrary, no justice can reasonably say they are unaffected by that."
In the Hamdi case, the Court left the precise details of a fair process for the lower courts to decide, stopping well short of requiring the heightened protections of a standard criminal proceeding. But it mandated the basic elements: "a meaningful opportunity" to contest the government's story before a "neutral decisionmaker."
Even the Court's nod to the administration on its authority to hold Hamdiif he is in fact found to be an "enemy combatant"was less a salute to the executive's prerogatives than an acknowledgement of the democratic will. Declining to find unilateral, prolonged detention among the inherent powers of the president, the Court held instead that a congressional resolution of September 18, 2001, had authorized the president to use detention as part of the "necessary and appropriate force" in defeating terrorists.
Narrowing still further, the Court defined "enemy combatant" in its Hamdi ruling quite specifically: "individuals legitimately determined to be Taliban combatants who 'engaged in an armed conflict against the United States' . . . captured in a foreigncombat zone." The category seemed to exclude citizens detained on U.S. soil.
And even when legitimate, O'Connor stressed, the president's authority to detain enemy combatants is not without an endpoint. "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding [of executive detention authority] may unravel."
Padilla, known as the "dirty bomber," was arrested by the FBI in Chicago in May 2002 and then moved to New York, originally as a witness in a radioactive-attack plot. He was moved again, to the same South Carolina navy brig as Hamdi, where he will have to wait longer for his day in court. A 5-4 majority, led by Chief Justice Rehnquist, refused to address Padilla's substantive claim of illegal, incommunicado detention last week, because of a technical mistake in the complaint. The Court said Padilla's lawyers would have to refile the challenge in a federal court in South Carolina, not New York. The lawyers plan to do so within the next two weeks and are optimistic about Padilla's hopes of challenging the government's allegations before a neutral party, given that Hamdicaptured, allegedly armed, on a foreign battlefieldwas granted at least that much.
Indeed, four justices dissented passionately from the majority's decision to avoid Padilla's constitutional claims on a technicality. "At stake in this case is nothing less than the essence of a free society," wrote Justice John Paul Stevens. Even the technical ruling permitted too much, he insisted, arguing that the majority was essentially legitimating the military's "secret transfer" of a U.S. citizen in order to "obtain a tactical advantage."
Stevens's concern did not seem too exaggerated, considering an exchange between the Court and Bush's lawyer at oral argument in the case in April. The Court asked, "So what is it that would be a check against torture? . . . What's constraining? . . . Is it just up to the goodwill of the executive?" The administration answered, "The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority."
The possibility of abuse in executive discretion took on new urgency in the months following that conversation, as allegations of systemized torture arose regarding U.S. military prisons in Iraq. The Court's 6-3 ruling last week in favor of letting some 600 noncitizens at the Cuban base challenge the factual basis for their detentions may reflect a heightened unease over the administration's credibility. Moreover, defense officials have admitted, most prominently in a recent New York Times report, that initial screenings of the detainees were far from precise, and that interrogations have been amateurish and disorganized.
Until the ruling last week, the Guantánamo captives lay beyond the reach of any justice system in the world, a state of lawlessness that the administration strenuously advocated. But the six-justice majority tossed aside the president's contorted argument that because the land is technically part of Cuba, the U.S. military cannot be said to hold sovereign power. The U.S. wields "exclusive jurisdiction and control" there, the justices pointed out, and that is enough to have to answer for the ongoing detentions.